The Baillieu Blog

My new Kernel column

noreply@blogger.com (Anonymous) — Wed, 25 Apr 2012 16:01:00 +0000

Following my departure from Pinsent Masons, I've agreed to start writing an occasional column in new online technology magazine, The Kernel.

My first column is called "Why I left the law".

My comment in today's Guardian

noreply@blogger.com (Anonymous) — Thu, 05 Apr 2012 12:37:00 +0000

The Guardian newspaper has just broken a story which confirms that Anne Darwin, the wife of the "missing canoeist", had her emailed hacked by Sky News, and some of the emails discovered had incriminating materials in them which were passed to the police and used in her trial for assisting in her husband's fraud.

Sky News is claiming that it acted in the public interest and therefore should not face any consequences for the hacking, which is, of course, an offence under the Computer Misuse Act 1990.

The report in the Guardian quotes me as follows:

Danvers Baillieu, a specialist internet lawyer with Pinsent Masons, said that while there was no public interest defence "it doesn't mean that a jury would convict a person, or a judge would punish them, because there is usually a discretion in such cases". However, he added that "the difficulty for news organisations is the question of where do you draw the line: would it be legitimate to break into somebody's house who is suspected of committing a crime? The issue with computer offences is that people can do it from their offices, and believe it is a lesser offence than any other type of intrusion."

Sky News likened the case to the occassions where reporters have had to break the law (in one case buying an Uzi and in another, breaching security at Heathrow) "in the public interest" for the purposes of their investigation.

Before I gave my comments to Dan Sabbagh at the Guardian, I read the statement from Sky News. It struck me that the cases cited and the hacking of Anne Darwin's email are very different cases. Given that the reporters at Sky News became aware that she had a Yahoo email account, they could have passed that information onto the police, who could have lawfully accessed her emails (i.e. with a warrant) and discovered the incriminating materials themselves.

That's why I made the analogy of breaking into someone's house - just because a reporter suspects a person might have incriminating evidence locked in their safe, does not mean it would be "in the public interest" for that reporter to burgle that person's house to retreive it.

Why is it any different online?

UPDATE: Following this post, I did some TV interviews, first with Al Jazeera (of course) and then later with the BBC (here - 10 o'clock News - picture below). I did a live interview with both (4pm news for Al Jazeera and then 5pm on the BBC News Channel) and some pre-recorded bits as well (see further below). Turned out to be a rather exciting afternoon.

Al Jazeera - take 3

noreply@blogger.com (Anonymous) — Wed, 04 Apr 2012 19:26:00 +0000

This week I was back on my favourite Middle Eastern television channel, talking about the UK government's plan to monitor the internet. I'm against it.

#TwitterCensored - back on Al Jazeera

noreply@blogger.com (Anonymous) — Sun, 29 Jan 2012 10:04:00 +0000

I've been fairly quiet on the media front lately, but the nice people at Al Jazeera English TV decided to get me back last week to discuss the news that Twitter has announced it now has the capability to delete tweets on a country by country basis.

In fact, it dedicated an entire edition of its show, Inside Story, to a discussion of this issue. I was in great company, up against Egyptian blogger and human rights activist, Wael Abbas and Computer Active Editor, Tom Royal.

The debate centred around whether this development was a blow for freedom of speech. I expressed my view that it was just part of Twitter "growing up" and most other major content providers have similar tools. Tom Royal pointed out that all countries see a filtered internet and explained how these were easily circumvented using VPN tunnels and IP Proxy services.

Wael Abbas, understandably, took a more purist view and expressed his unhappiness at the development. His concern was that activists would have their ability to communicate through Twitter, in the way that he did during the Arab Spring, curtailed.

We shall see how Twitter use this tool. My prediction is that it will be difficult to get them to remove anything - as it is now - and since removal will be on a country by country basis, there will be less censorship, than would have been the case with the previous system of removing the post altogether.

The experience of recording the programme was interesting as well. I was sitting by myself in the Al Jazeera studios in Knightbridge. Tom Royal was in Westminster and Wael Abbas in Cairo. The host, James Bays, was in Doha. As it was not being filmed live, there was no facility to see the other participants and so I was facing a dark camera and had a bright light shining at me. Previously when on TV, I have been told not to look at the camera - this time I was asked to look down the lens as much as possible, even when not talking. You can see from the video, that I did not always succeed - it is probably harder to stare at a camera than it is to ignore it. I also blinked too much. Anyway, watch and tell me what you think

PS As I was writing this post, up popped this tweet:

It shows the brilliance of Twitter, how it gives the right of reply to everyone. Now, how to get it deleted...?

Danvers Baillieu–Media Lawyer (!)

noreply@blogger.com (Anonymous) — Sun, 22 May 2011 10:12:00 +0000

In the last couple of weeks I have been busily giving my views as a lawyer on the issue of so-called “super-injunctions” being breached on Twitter. I’ve been quoted extensively in the Telegraph (here, here, here and here) and by themediablog.co.uk.

The highlight of the week was a brief appearance on live TV, courtesy of Al Jazeera English news, on Friday night, where I was billed as a “Media Lawyer” – media whore, more like, as some of my friends quipped on Facebook. Fair enough, it was my second live broadcast of the week, after Radio 5Live’s On the Money on Sunday evening.

I nearly made it onto Newsnight (only stood down at 9pm) as the story took an extra twist to reveal that “CTB” the “anonymous” footballer with a super-injunction against Imogen Thomas and the News of the World (case report here) had launched an action against Twitter, Inc. itself and persons unknown – most likely, as I speculated on Twitter, for an order to disclose the identity of those people openly flouting the injunction. Since then, CTB’s lawyers, Schillings, have confirmed that this is correct.

This led to a phone call with a journalist from Newsnight who effectively auditioned me over the phone to see if I would be suitable to go on the programme that evening. “But what do you think should happen” she asked me, after I’d explained what I thought CTB’s legal advisors were up to.

I hesitated. I was happy to give a personal view as to the law, as a lawyer, but the politics of it all, are more difficult.

I do think that the judiciary are being unfairly criticised for granting these super-injunctions and it is hypocritical of politicians to hide behind parliamentary privileged to flout them as was done last week by Lord Stoneham.

The legal basis for the super-injunctions is a long standing law of confidence which has existed for centuries, bolstered further by the European Convention on Human Rights (around for decades) and its English law counterpart, the Human Rights Act 1998 – the clue is in the name. Before the invention of the internet and the rise of web 2.0 self-publishing, “gagging orders” could simply be slapped on media outlets as appropriate to prevent widespread dissemination, let alone speculation. Before Twitter, the rise of chatrooms and comment facilities on blogs meant that even reporting the existence of an injunction was likely to provoke speculation as to what was being banned – hence the super-injunction.

As explained in the judgment of Mr Justice Eady in the CTB case, the courts are faced with a situation in which all human rights are given equal treatment and that the right to freedom of speech is no greater than a person’s right to privacy. Instead, the politicians have left it up to the courts to decide where the balance should lie.

Faced with the task of making a judgment in favour of one of two equal rights, the courts often try to decide on the basis that “public interest” tips the scales. Or as Eady, J. put it in the CTB case: “Would it help to achieve some legitimate social purpose, such as the prevention or detection of crime? Or … would publication in some way prevent the public from being seriously misled?” [para 25] – in this case, he went on to note: “As in so many "kiss and tell" cases, it seems to me that the answer…is not far to seek. Indeed, it was not even argued that publication would serve the public interest.” [para 26].

Added to this, the CTB case has unpleasant undertones of blackmail and the worst excesses of an intrusive tabloid newspaper, with the suggestion that although the relationship between Thomas and CTB was over, she was attempting to engineer a meeting so they could be snapped together, for the benefit of the ensuing report.

The injunction obtained by Sir Fred Goodwin, whose identity was revealed by Lord Stoneham in the House of Lords last week, and the case recently described by a “leading blogger” may have different characteristics, but in both cases a judge heard the details of the argument and decided, rightly or wrongly, that an order should be made.

Parliament has given no detailed guidance to the courts as to how they should balance the right to freedom of speech with the right to privacy, nor has it made any attempt to define what counts as “public interest” in such situations.

In these circumstances, it is at best arrogant of parliamentarians to hide behind privilege to breach injunctions, and at worst reckless. Constitutional balance depends on mutual respect: imagine the outcry of MPs and Lords if the courts refused to implement a new law on the basis that the judges simply disagreed with it on political or moral grounds.

Mark Easton’s blog comments: “Ex-Sun editor Kelvin MacKenzie and the publicity guru Max Clifford probably touch a nerve when they suggest the judiciary are the last people the public would want as adjudicators on public morals.”

But this entirely misses the point - the judiciary appear to be far more modern and in touch with public views on the question of morality than tabloid newspapers, or others who make a living out of publicising such tawdry scandals, such as Max Clifford. If anything the judiciary has done its level best to interpret the ever loosening laws on private sexual conduct as a green light to its interpretation of “public interest”.

However, this can all be resolved if politicians decide to grasp this particularly thorny nettle and legislate on the meaning of public interest – which of course they will not, any time soon, as they will simply be accused of protecting their own indiscretions from public view – as happens in France, which we’ve seen, can lead to disaster.

New Role

noreply@blogger.com (Anonymous) — Wed, 02 Feb 2011 07:01:00 +0000

Yesterday I joined Pinsent Masons LLP, an international law firm based in the UK, as a senior associate in their Technology Group. I had been at Winston & Strawn since June 2003 and I had an amazing 7 and a half years there, making many friends and travelling to exotic parts of the world - but all good things come to an end and it was time to move on.

If you'd like to get in touch with me in the office, my new contact details are:

danvers.baillieu [at] pinsentmasons.com
tel: +44 (0) 20 7490 9379

New Baillieu Blog on the Block

noreply@blogger.com (Anonymous) — Mon, 07 Jun 2010 21:17:00 +0000

I am a bit fearful that due to her status as a successful editor and journalist, my sister's new blog is going to have far more traffic than my humble offering. Luckily I have still a head start of several years and some 145 posts, so I am happy to give her a bit of free publicity.

Also, I love the name:

If you want to be comfortable, go to bed

One baby eating urban fox proves nothing

noreply@blogger.com (Anonymous) — Mon, 07 Jun 2010 21:04:00 +0000

The story last night of the 9 month old twins being attacked by a fox while they were sleeping in their cot in their home in Hackney sent shivers down my spine.

Once my spine had stopped shivering, my next reaction was to think about the impact such a story will have on the image of foxes, particularly the urban variety.

Some of us, me in particular, regard the urban fox as one of life's annoyances. Some of them live in the communal gardens near our house. I've seen them running down the road, bold as brass, playing with each other and I have scooped up the contents of our shredded bin bags outside our front door - as well as enjoyed the smell of their urine on the door step. For me, foxes belong in the countryside where they can be trapped, shot or even accidentally hunted by dogs. But this is not a post about hunting.

Other people take a different view and see a handsome animal charmingly bringing a hint of the countryside to their city. They leave food out in their gardens and delight in how close they dare come to humans. They are almost like pets.

I accept that such people would make the perfectly valid assertion that an attack by a fox on humans - even very small ones - is so rare it is virtually unheard of. More people are attacked - and children killed or maimed - by domestic dogs - or for that matter their own parents, step parents, foster carers and other assorted random nutters in a single year than the total record for fox attacks (I assume).

The reaction I was not expecting was one of complete denial. However, if you visit the home page of the Save-me campaign (sponsored by Brian May, the guitarist off Queen), this is what you will find. Brian's first post to the campaign's facebook page read

"Fox attacks babies ? Sure ! And monkeys will fly ...... out of my butt. Ha ha. And I suppose there is proof ? !!! What a piece of work is Man. love Bri".

As of now, 238 people "liked" this note and 241 commented. Once Brian had established that there was in fact proof he wrote a more "serious" note which started:

"Well, I don't have enough information to know whether this is an attempt by somebody to turn people against foxes, or not."

This note opened the floodgates to a further 213 comments ("likes" down to 126) many of which were sceptical about the truth of the original story on the basis that foxes simply DO NOT attack humans.

Of course, this reaction of denial would be no less irrational than calls for a massacre of urban foxes on the grounds that they are a danger to small babies.

But by nature we are irrational when faced with freakish events. Some find solace in conspiracy theories which allow them to pretend that the event in question has a different cause with which they can cope more easily. Others call for drastic action to ensure that the incredibly rare event can never happen again. These calls are often irresistably populist and end up in bad legislation - or in the case of 9/11 - war.

With this in mind, I had some sympathy for the senior policeman defending the actions of his unarmed officers who were in contact with Derrick Bird while he was rampaging around Cumbria, but were unable to stop him. Like he said, these were "exceptional circumstances" and sometimes it is impossible to draw any lessons.

So, it would be irrational to view foxes as any less cuddly following this incident. Brian May, on the other hand....

Second Homes and Capital Gains Tax

noreply@blogger.com (Anonymous) — Wed, 19 May 2010 17:39:00 +0000

The Bank of England - not my second home. Image via Wikipedia

It would seem that a huge amount of rubbish is being written about the widely trailed plans to restore the link between the rates applied to Capital Gains Tax (CGT) and Income Tax, in particular the apparent concerns of all those people - each of them apparently a core Conservative voter - who own second homes.

At the weekend, David Cameron is reported to have said that second home ownership was not "splendid" for the economy. Of course, in many areas there are concerns that second home owners are pricing out the locals who have to move far away - fishermen can no longer afford Fisherman's Cottage, and the local vicars can barely afford the new Rectory, let alone the Old Rectory which was sold off years ago.

But without going into the rights or wrongs of second home ownership, the idea that somehow these people will "suffer" if their GAIN on the sale of the property is taxed at the same rate of income is quite bizarre. Property ownership in the UK has been, over the long term, a good one-way bet for many years. There is no risk taking with this sort of "investment", which is, to coin a phrase, as safe as houses. Although frankly, the idea that a second home (as opposed to a buy-to-let investment) is in fact an "investment" is pretty odd.

On the other hand, it was the last Labour government (hiss, boo) which created the anomaly of taxing captial gains at a lower rate to income (whether earned or not) and did away with many of the distinctions between business and non-business assets - and dismantled the reliefs (taper and indexation) which rewarded those who held investments for the long term. Instead the new 18% rate was available for any asset, no matter how long it had been held. This encouraged some people to arrange their affairs so that income became a capital gain (and taxed accordingly) or to invest for capital growth rather than a steady income return - which surely pushed up property prices.

So when George Osborne looks at the detail of the CGT realignment with Income Tax, it would be extremely sensible if taper relief and indexation allowances are restored, and that the exemptions, such as Entrepreneurs Relief and schemes such as the Enterprise Investment Scheme are maintained to encourage investment in real businesses. As CGT rates rise, these schemes will make investment in real businesses all the more attractive, which should be widely welcomed.

Welcome to the Democratic Conservative Alliance Party!

noreply@blogger.com (Anonymous) — Tue, 11 May 2010 18:14:00 +0000

So last night I made a gloomy return to blogging after a long absence, but in the last 24 hours the political landscape has improved for those of us who have longed to see the rise of the Democratic Conservative Alliance Party (DCAP) - a new type of government which ~~looks as though it is about to take~~ is in power in the UK.

In many ways, DCAP is the perfect party of government in the UK. Far from there being an "progressive majority" in this country, the more considered view is that there has always been a moderate conservative majority, the inheritors of the Whig party whose supporters have been found for the last 100 years in the socially liberal wing of the Tory party and the capitalist wing of various other parties, from the old Liberals, through the SDP, and to an extent, New Labour (RIP).

DCAP is the inheritor of One Nation Conservatism and conservative Trade Unionism - a party which believes in society's responsibility for the those in need but also understands that a strong society is not always, if ever, a function of government. DCAP provides support for all those of every political persuasion who understand that social activism can be an end in itself. Although socially liberal, DCAP respects traditional values and seeks political reform through wider consensus rather than by diktat.

DCAP may be decried as as a return to Butskellism but against the backdrop of the supply side reforms of the 1980s it will be about regrouping our resources for growth and not managing decline. For sure, there are tensions, perhaps irreconcilable on European policy, but these too could be healthy since it is unlikely that anyone in Britain (or Northern Europe for that matter) will be rushing headlong in closer economic or political union until much of Europe has undergone the same far reaching economic reform we worked through 30 years ago.

Although David Cameron is its perfect leader, DCAP is a construction of my imagination and two parties will continue to co-exist, cohabiting Whitehall. If the Liberal Democrats have any sense whatsoever (and after the last 5 days that is very much an unresolved question), they will position themselves as the "voice of reason" on the shoulders of the Tory party and when they next face the electorate take credit for being the moderating influence on a successful government and manage to increase their share of the vote and number of seats.

If the Tories are lucky, the Lib Dems will terminate the relationship over an issue which plays badly for them with the electorate and the Tories will return to government alone.

Meanwhile the Labour Party is retreating to lick its wounds, select its third new leader in as many years, and hoping that DCAP will be a disaster riven with division. However, it clings to the miscalculation that every Lib Dem vote was an anti-Tory vote. In many Lib Dem / Labour marginals, it may well have been an anti-Labour vote and Lib Dem incumbents will increase their majorities (as they have done against Tories, despite the national swing) as they paint themselves as progressives who can influence the Tories positively.

Many of us in the Tory party thought a "short spell" in opposition would be good for "healthy renewal" - and a fat lot of good that was. But history shows that Conservative governments are generally long lasting - the only 4 year stretch was in 1974, which was on the heels of a shock victory for Heath - and I sincerely hope and believe that this one will be too.

The Conservative Party - my role in its success

noreply@blogger.com (Anonymous) — Mon, 10 May 2010 21:44:00 +0000

Election night 2010 (May) was an excruciating kind of tourture for those of us who had been waiting all our adult lives to vote for a Tory government. What started off so well in Sunderland and Kingswood quickly turned into concern in Torbay, disappointment in Tooting, despair in Westminster North finally disaster in Wells and Eastbourne. Not that there weren't any bright spots in the evening as some friends and colleagues from long ago entered Parliament for the first time but as the sun came up on Friday morning all hopes of an historic car journey from Notting Hill to Buckingham Palace were dashed.

Having been a party activist in my time, I resolved to do more at the next election, which could be very soon (this year perhaps) and wondered what difference I could have made had I done more this time around. Or whether I was better off staying well out.

Looking at my record, it must admitted, it is bleak and it may be that I do more harm than good.

I was born in 1976, so could not have had an impact on any election prior to that. The first three elections of my life were in 1979, 1983 and 1987. These were all great elections for the Tories but I was far too young to have been involved. By 1992, aged 16, I was interested in politics and was keen to see John Major re-elected. However, any chance of campaigning was scuppered by a school trip to Australia. I missed the excitement of election night and only picked up the results and tit bits such as the loss of Chris Patten from Australian National Radio.

By 1997 I was old enough to vote and had become firmly involved with the Conservatives. I was chairman of the student branch at Bristol University and spent most of my Easter holidays (and the first few weeks of the summer term) campaigning, if not for a Tory win, at least to save Bristol West and its sitting MP, cabinet minister William Waldegrave. I could not have done more but we fell short by around 1500 votes and the seat went red in the massive landslide which swept Blair to power.

2001 was another bleak year for the Tories. I had started work in the City but had been hired to build websites for seven Tory candidates. Six of those candidates lost, including one in Ludlow which had been held in 1997, and was regained again in 2005. My only winner was in Taunton, which was promptly lost again in 2005....

My involvement was scaled back in 2005 and although Labour returned to power, it was with a reduced majority.

Which brings us to 2010 - the best Tory result in years but not quite good enough. I went to at least one fundraiser, gave money to various candidates and evangelised to friends and my wider network and enthusiastically tweeted in support.

I'm now wondering if I jinxed it.

Launch48 - Web App Legal 101

noreply@blogger.com (Anonymous) — Fri, 16 Oct 2009 10:30:00 +0000

I am speaking at the Launch48 Conference on 16 October. When I speak in public, I like write something out first, but not memorise it or have it front of me. Because there is a lot to digest, I thought it might be useful if I just blogged my notes. If you want to read them, they are after the jump. I am setting the publish time to 11.30am on 16 October, by which time, I'll be done. However, if you have any questions, leave them in the comments and I will try to answer them.

(Full text)

Good morning.

I am hired by companies to be a professional cynic, a professional pessimist and a professional pedantic pain in the proverbial. I am a lawyer. My clients are generally deluded optimists, sometimes with only the loosest grip on reality. They are entrepreneurs.

I will admit that sometimes they prove me wrong and things do go right. But frequently I am right and things do go wrong. Which is lucky, because otherwise I would be out of a job.

However, for a few moments I am going to share in your optimism and imagine that the companies you are going to build this coming weekend are all going to be run away success stories. There my optimism ceases and I am going to be pessimistic again. Put it this way, if your aim is to have a fun time over the next couple of days but at the end of it you have no intention in carrying on, then please feel free to switch off for the next 10 minutes or so, and surf the internet instead.

But if there is a risk that your project might have legs and might one day be worth something, please pay attention and only tweet intermittently....

I am going to concentrate on two issues this morning: Intellectual Property Rights (IP or IPR) and the ownership of the project. I am going to assume that at some point you will incorporate a private limited company to be the vehicle for your project - I'll explain a good way to do this later. I am also going to be a little bit simplistic.

Intellectual Property Issues

IP is quite simple. Just about anything that is created this weekend will fall into the category of IP. Whether it is graphic design or lines of code or a PowerPoint presentation there will be IP involved.

When a person or a company creates IP, it belongs to them personally. A company can only create IP via the work of its employees, and in law, any IP created by an employee in the course of his or her work, belongs to the employer.

On the other hand IPR created on behalf of a company by anyone other than an employee, such as a contractor - or in your case, a helpful volunteer, will not belong to the company, unless it has been properly assigned.

There is no magic to assigning IP. It doesn't even need to be in writing, although it is quite hard to prove if it is not. Formal IP assignments can be long documents with warranties and representations and so on, but essentially they need to say simply: "Bob hereby assigns all his rights in the Intellectual Property to Startup Limited" - there will need to be a definition of Intellectual Property - for an ongoing relationship should include yet to be created IPR as well as pre-existing IPR.

Like I said, there is no magic to it, it just need to get done. But remember you cannot assign what is not yours. That sounds rather obvious when you say it out loud, but it is possible that you could create IPR this weekend and not own it, and therefore not be in a position to assign it to the project you are working on.

As I said a moment ago, by law, a company owns the IPR created by its employees in the course of their employment. However, many companies insert additional IPR clauses into their employment contracts, particularly for employees who are likely to create IPR, which will say that ANY IPR created by that person belongs to the employer. My colleague Barry is fond of saying that such a clause cannot possible be interpreted literally and there is no way your employer could claim ownership to the IPR in the letters its employees write to Father Christmas each year. But, if you are employed to write code or design websites, it is highly likely that your employer would have a decent claim to any code or design you've created in your own time, such as over the next weekend.

If you are in this position, there is a solution. You speak to your employer and you get a release in writing - this can be obtained before or after the IP is created, it's up to you.

Ownership

Turning to ownership. If this time next year, Rodney, we're all going to be millionaires, you're as sure as hell going to want to know how much of it is yours.

Like I said at the start, the most obvious thing is to put everything into a new limited company. We generally suggest to our start up clients that they do this themselves online. Under the new Companies Act, forming a company has theoretically become easier, but we'd still suggest you use an agent such as Jordans to help you with this. Before you do so, it is worth deciding who owns what percentage of the company, because if you take shares at incorporation they are deemed to be founder shares and you skip a lot of the tax complications which can otherwise arise.

The company is then the legal personality of your project and should itself own or have a licence to use everything it needs to operate - such as the IPR which I've already discussed.

I can't tell you how to divide up the ownership of the company, that is a matter for each group to decide, but I do have a few observations:

It is going to be very unwieldy to have lots of shareholders in a company, especially if you are trying to include those who are not going to stay involved after the end of the weekend. Think about other ways you could reward those who make a valuable initial contribution over the next 48 hours, which might not involve giving them equity.
Balance and fairness is great, deadlock and stagnation is not great. All good businesses need a defined leadership structure and your shareholder structure should support this.
The structure does not have to be set in stone - individual shareholdings could change over time to reflect commitment and involvement in the project.

On the last point, when we meet new start up clients, we always advocate that they have a clause in their company constitution which deals with what happens if one founder decides to leave - or is asked to leave - the business. Our suggestion is that the other founders have the right to buy a percentage of the shares from the departing founder at market value - and that percentage should decrease the longer the founder has stayed with the company. Investors usually insist on them and you'll hear these clauses referred to as "good leaver / bad leaver" clauses.

What we never advocate is that the contractual relationship between the founders is highly complicated or involves a lot of time or expense. The priority is your business and making that work, and a pound or an hour spent on legal issues comes straight off the funds or time you have to market or develop your business. It is a question of keeping the legal spend in proportion to the value of the project.

On that note, it would be inappropriate for me to take up any more time, especially as the coffee break is about to start. Let me just say that I am happy to discuss any legal issue with you - I'll be around until lunchtime today and I'll be back tomorrow evening with my colleague Barry Vitou to answer more questions. The "official" text of this presentation should be on my blog in about 5 minutes time - there's a link from my bio on the Launch48 website. And if you want more regular legal tips for web start ups, if you have not already done so, please do sign up to our meet up group, Bootlaw, which, as it happens went from concept to launch in a mere 36 hours.

So hurry up and good luck this weekend.

Me, Twitter and the BBC

noreply@blogger.com (Anonymous) — Thu, 01 Oct 2009 21:12:00 +0000

Earlier this afternoon I read this story on Guido Fawkes' blog about my former young Tory sparring partner, Donal Blaney, being given permission to serve an injunction via Twitter.

My first thought, apart from that 140 characters makes for a short injunction (a link is being tweeted), was that it doesn't much help if the offender tweeter fails to comply with the injunction - enforcement is still a bit of an issue, to say the least. Short of a disclosure order against Twitter, such legal action appears to be a little fruitless - although failure to comply would constitute contempt of court, which carries sanctions far greater than any damages likely to be awarded to Donal - if the perpetrator is ever uncovered.

I made a short comment to this effect on Guido's blog (number 6) and sent a short tweet from Bootlaw and thought nothing more of it.

Then, a few minutes later I saw a tweet from BBC tech correspondent, Rory Cellan-Jones, asking Donal to send him the injunction tweet.

So, I sent Rory a direct message offering commentary on the matter, and quickly checked the Civil Procedure Rules on service of documents. Moments later I had a response from Rory, asking me to call him on his mobile. We spoke twice (he called back to confirm the details) and he asked if I was aware of any other strange examples of service of legal documents - I said I thought there was a case involving Facebook.

Literally, half an hour later, this appeared on BBC news: http://news.bbc.co.uk/1/hi/technology/8285954.stm - currently the 4th most popular story on the site!

Amazing how you can get free publicity, just using Twitter, eh Donal?

Moonlighting on Techcrunch Europe

noreply@blogger.com (Anonymous) — Thu, 03 Sep 2009 22:32:00 +0000

My views on the idea of standardised termsheets for venture funding rounds (a surprising hot topic amongst those in the business, now that you ask) appeared earlier today in an co-authored guest blogpost over on the widely read Techcrunch Europe blog.

Read all about it here.

Thinking about the meaning of "authoritarian"

noreply@blogger.com (Anonymous) — Mon, 24 Aug 2009 21:17:00 +0000

I try to read a range of opinions and my feedreader contains a decent cross section of political bloggers, although sometimes I cannot remember why a particular one ends up in there. Nevertheless, I do follow the slightly pretentiously named "Letters from A Tory" and this morning a post (or "letter") did catch my eye as the title pretty much betrayed the author's opinion on its own: "Tories will bring back fox hunting by the back door" - of course there was a chance that "A Tory" would be enthusiastically arguing for hunting to be restored through the front door, but my interest was piqued by a seemingly rightwing blogger going against fox hunting.

I commented quite early on (15/65 - and counting) that there was nothing "back door" about the proposal and that it makes political sense for the Tories to signal their support for a repeal or reform of the Hunting Act. Framed in terms of animal welfare, the debate in the comments followed some well-trodden paths, but for me it got interesting when the charge of New Labourite "authoritarianism" was thrown at the self-styled "Tory" (aka LFAT).

His response (at 58) was as follows:

"I think it’s fair to say that banning something just because you don’t like it is indeed authoritarian. However, as some have pointed out above, foxhunting is not so much a case of banning something because you don’t like it – it’s banning something because it’s wrong. Governments have to draw the line somewhere when it comes to harm and suffering as there are certain things that a society should not accept e.g. rape or murder. I believe that causing harm and suffering to animals for fun also crosses that line without any shadow of a doubt, whereas hunting animals for population control (which fox hunting is most certainly not) is acceptable in my opinion. It’s all very well saying that banning things is authoritarian but people and animals should always be protected from cruelty – indeed, if they weren’t then something is seriously wrong."

It is quite right, perhaps trite, to say that governments do have to draw a line somewhere - they do that all the time, but when it comes to banning an activity, what counts as being authoritarian?

The problem in this case lies at the point where LFAT - or in fact the government (if you leave to one side all the non-animal welfare/class issues) - made its judgment, namely that fox hunting is cruel, because this is not a conclusion shared by the vast majority of people who advocate a repeal of the ban.

There is no point making an analogy with rape or murder - or even bear baiting - because you would be pushed to find a significant number of people who would honestly defend such things as being humane or desirable in society.

Whether anyone likes it or not, the defenders of fox hunting hold their views as faithfully and honestly (not to mention, vehemently) as the opponents. Many of those in favour have never been anywhere near a horse, let alone a hunt, so there is little self-interest in play or ulterior motive. Without any question, there is at least an arguable case for hunting (but please don't try and engage me in the comments in this argument - that's not the point of this mental download).

My point is this: where the arguments are so finely balanced a non-authoritarian government should generally come down in favour of liberty. The balance has to be in terms of the classic cost/benefit analysis - but where any perceived gain is so small in relation to the loss of liberty, it would be fair to use the authoritarian tag.

This analysis can be applied all over the place, for instance, today's mad proposal that ALL pubs be obliged to use plastic glasses, or, some would say, the blanket smoking ban. It works the other way as well, and restrictions of personal liberty that produce relatively dramatic gains can be completely justified - such as compulsory seat belts in cars on the lower scale, or more significantly, taxation.

Of course, we end up back at square one on this debate, when the proponents of a new ban claim that the benefits will be huge or the opponents refuse to accept the encroachment on what they perceive to be a vital liberty. I guess this is what makes politics still interesting.

MP Expenses 2.0

noreply@blogger.com (Anonymous) — Thu, 18 Jun 2009 21:24:00 +0000

All credit to the Guardian which today launched a web application which had been built in the space of about a week, allowing its audience to collaborate with its journalists in analysing the newly released MP expenses documents. Charles Arthur explains how they did it here.

This is absolute genius and in a short space of time tens of thousands of pages have been reviewed and the interesting ones flagged.

Crowdsourcing is a tried and tested Web 2.0 technique for analysing data and producing content cheaply and quickly - arguably the comments feature on every website is a method of crowdsourcing content as much as it is about providing a feedback mechanism. But it is surely a first in the UK that a major media outlet has put so much reliance on the good judgment of its readership and in relation to such a major story.

Maybe next year, we could each read a single page of the budget report and flag up whether there in anything interesting in it?

On a professional level, I have used litigation databases which rely on large sets of documents being profiled through a web interface - but the lesson of the Guardian's experiment is surely that by directing the analysis and keeping it very simple (with a very friendly user-interface) you can sort through masses of data very quickly.

Just what I was going to say...

noreply@blogger.com (Anonymous) — Thu, 18 Jun 2009 10:20:00 +0000

The furore over Prince Charles' intervention in the Chelsea Barracks development has been building for a number of weeks and I have been following the coverage of it in Building Design (which has a story about the new competition here) and elsewhere. Things came to a head earlier this week when Lord Rogers well and truly threw his toys out of his pram, calling Charles' actions "undemocratic".

I was going to wite a lengthy post arguing that a decision of a private landowner to withdraw a planning application has nothing to do with democracy. Rogers is effectively suggesting that because something has gone through planning it must be built - surely that cannot be right?

And in relation to Rogers' criticism that Charles was abusing his (unelected) influence, I was simply going to question what influence Rogers asserted to get the project in the first place and then to get it through planning - and ask how they are really any different?

It is probably just as well I haven't written such a post, as no doubt it would irritate those members of my family who are members (associate or otherwise) of the RIBA, and in any event, Alice Thomson in the Times has written a much better articles which is better argued than anything I would have written.

PS - what is also quite fun, knowing where Rogers lives (very nearby the Barracks as it happens), using Google Streetmap, it is possible to get this shot of his sitting room, complete with sight of his Mao Tse Tung by Andy Warhol.

This is a better image, via Zemanta:

Image by Getty Images via Daylife

What is Tom Watson really up to?

noreply@blogger.com (Anonymous) — Fri, 05 Jun 2009 21:21:00 +0000

At the end of the most tumultuous week in British politics since May 1997 it is easy to forget the resignation of the low-profile loyal junior Cabinet Office Minister, Tom Watson MP. Devoted readers of the blog will recall that I have met Watson and praised him for his role as Minister for Digital Engagement. However, as observers of the Westminster Village know well, Tom Watson is not just the cuddly figure who makes friends on Twitter, but a key figure in the "inner circle" (copyright, Caroline Flint MP) of people around Gordon Brown, and has frequently been described by others as Brown's "enforcer".

Watson made his resignation letter into a blog post earlier today and much as trailed in the press, he has cited pressures on his young family as the reason for his departure from government. No doubt such pressures do exist and not for one minute do I pretend to know what he has been going through, although he has recently won a libel case against the Daily Mail based an article written by Iain Dale on the Damian McBride affair.

But if the "painful" pressure on his young family is to be taken at face value, what are we to make of the enigmatic statement at the end of his letter:

I would still like to make a contribution as a campaigner, helping you to lead Labour into the next general election, which I know we both believe Labour can and must win. We both came into politics for the same reasons; a passionate belief in decency, justice and fairness for ordinary people and an equally certain conviction that only Labour has the courage and the competence to make it happen.
That is why I will remain alongside you as we fight and win the next election under your leadership. Though not, with some wistful regret, as a member of your government.

My suspicion is that in order to serve Gordon Brown more effectively, Watson has had to ditch his ministerial role. As a minister, Watson had civil servants who had be shielded from his political activity, he had ministerial responsibilities to undertake (the ministerial trip to New York written about below which was curtailed by the political mini-crisis in September 2008) and so on. He's free from those responsibilities and restrictions from now on and can dedicate himself fully to Brown, who is of course, a bit short-staffed since the departure of McBride.

It's a shame really - as I told him via Twitter today - the greater good might have been better served by keeping the ministerial role and ditching the "save Brown" one.

What is the relevance of the "average wage"?

noreply@blogger.com (Anonymous) — Mon, 01 Jun 2009 16:02:00 +0000

Much of the discussion around MPs pay and expenses has made reference to the "average wage" in the UK. This got me thinking and I started to do some research, but immediately ran into a fog of adjusted numbers, put out in the main by the Institute of Fiscal Studies. The IFS's statistics, which were picked up by the BBC News website and were the basis for a number of graphs that have been repeated elsewhere, including by Guido Fawkes, such as this one:

Even on the IFS's own figures, the "typical weekly income" quoted here is the median figure of £393 per week, when perhaps the more relevant MEAN average figure of £487 should have been quoted (see: IFS report on poverty and inequality for these figures) - no doubt the BBC journalists were looking for the biggest spread. Furthermore, these numbers are adjusted for tax (including council tax) and number of dependent children, which makes them hard to link back to annual salaries.

Personally, I am better able to deal with annual gross amounts when talking about salary, because that's the basis of what I earn and what it says in my employment contract. Luckily, help is at hand from the Office of National Statistics, which gives these number in all sorts of formats.

For the record, the mean average annual gross salary in Great Britain in 2008 was £26,020.

However, if this is the basis of a meaningful comparison with MPs salaries, it is notable that the mean average annual gross salary for men in full time employment in 2008 was £35,122.

Of course, many men are at the start of their careers when they are earning less money, bringing down the average, so I looked up the breakdown by age and the highest earning group are men between 40 and 49 (which is probably the typical age of an MP and therefore perhaps a fairer comparison), and the average wage for this group was £40,786.

If we put him on the BBC graph, it looks like this:
So, against the figure of £40,786, an MP's salary of £65,000 or so no longer looks quite so excessive - it is certainly not a multiple of that figure.

But what sparked all this off, was considering that fiendishly complicated New Labour innovation: working family tax credits. These are means tested credits which taper off, but are still of value to a family whose combined income is less than £58,000 per year.

I thought that was an interesting figure to bear in mind, on the basis that the government makes the judgement on behalf of "ordinary people" with a family that if their combined earnings are less than £58,000 - only marginally less than an MP's earnings, they are entitled to state benefit.

I am not suggesting for one moment that this is an excuse for Scamalot or even an argument to pay MPs more, but I do think these figures could help inform that debate.

Wow - that was easy

noreply@blogger.com (Anonymous) — Thu, 28 May 2009 13:22:00 +0000

Blog Service Announcement:

I really love the service provided by Disqus and have had its commenting system on this blog for some time now. I recently became aware that there were a number of new features available, but assumed that there would be some cumbersome process required to activate them on here.

Not so: in around five minutes flat, I have updated the features, which means you can now sign in to comment using Facebook Connect or Twitter OAuth, and this included the time it took me to set up my own Facebook App, which is required for the Facebook Connect function to work specifically for this blog.

It may be form over substance, but I hope it encourages you to "join in the conversation", as they say, and make this a more vibrant blog.

/Blog Service Announcement

Look Ma - our democracy works!

noreply@blogger.com (Anonymous) — Tue, 26 May 2009 17:00:00 +0000

Last year when the banks collapsed, various people went around saying it was the "end of capitalism" - the same people, no doubt, who thought house prices would always go up and the sun keep on shining all year round. More intelligent people pointed out, that crashing is what markets, particularly if poorly regulated, do from time to time.

The same is true of the current expenses scandal - Scamalot - which some, such as Alan Johnson MP, are hoping will act as the catalyst for the introduction of proportional representation as a cure for our "damaged" democracy.

Scamalot has been terrible for Parliament, political parties and various individual MPs, but it has been fantastic for democracy. Suddenly, all these MPs who have had questions asked of them in our free press are having to answer to their own constituents, and where their position is unsustainable, they are announcing their retirement at the next election. And where errant MPs are not going voluntarily, they are likely to face a strong challenge either from another party or from a "sleaze-busting" independent. "Safe" seats are suddenly not looking that safe after all. More importantly, the sense of national outrage will lead to reform and much more openness in the future.

Tom Harris MP has already taken issue with Johnson's article (and more humourously, here, with those using Scamalot as a chance to change other things), pointing out that PR does nothing to assist democracy, but he misses the major point that most forms of PR weaken the connection between the MP and the constituency - which has proved so important recently. Landslides not only produce strong (some would say, undemocratic) governments, but they also mean that no party is immune from almost complete wipe out, meaning that they have to reach out well beyond their hard core supporters if they are to win even a single seat.

David Cameron's response this morning in a speech to the Open University in Milton Keynes shows that he understands that it is openness and accountability (that openness brings with it) which will keep our democracy vibrant. Tom Harris can mock the fix term Parliament proposal all he likes but clearly he doesn't understand that where knowledge is power, governments need to be better at sharing their knowledge, starting with the date on which we all get the chance to boot them out of office.

Scamalot: dead ducks or dotty Dorries?

noreply@blogger.com (Anonymous) — Fri, 22 May 2009 13:06:00 +0000

It needed a huge effort to top Douglas Hogg's dirty moat, but Peter Viggers' ducks finally did it this week, when it transpired that they had been claiming for a second home in the MP's duck pond, when in fact, it was their main home (or something like that).

The scandal has been so successful that it has cracked the US, getting its own slot on the Daily Show with Jon Stewart, and being dubbed "Scamalot" (see below for full clip).

I have blogged about this topic about as extensively as I have any other on this blog (great political story - easy to have a quick opinion) and in the main I am appalled, outraged etc, about the claims being made on the public purse by our MPs. However, there are two respects where I am starting to diverge from popular opinion: first, there seems to be disbelief that any MP (or at least one who lives within a couple of hours of London) could possibly require a second home to do their job properly - and that this should be somehow paid for by the taxpayer and secondly, that the natural reaction to this is to say "a plague on all your houses" and either refuse to vote, or vote for a supposedly clean fringe or extremist party.

So I was interested to hear Nadine Dorries on the radio this morning as she is one of the few MPs who has coherently (and from a position of innocence) attempted to put into context some of the claiming that has occurred (also blogged by her here). More interestingly, she has called out the entire media (but clearly the Daily Telegraph) for playing the shocked innocent card themselves, making out that the existence of MPs allowances is newsworthy in itself, or that a £24,000 tax free allowance was no more than a thinly veiled £40,000 pay increase.

I am also pleased to see that Iain Dale has picked up on the story of the council by-election in Hazel Blears' constituency, which was a Labour HOLD but saw the BNP move into third place, 17 votes behind the Libdems (whose vote slumped by 22%), and combined the minor parties (BNP, Greens and UKIP) took 33% of the vote. Even though council by-elections can be a very poor indicator of national trends (total turn out = 1612), these figures are pretty shocking, suggesting that there are plenty of feeble minded people out there who think that the criminals who run the BNP are better equipped to run the country than [the fraudsters running] the exisiting main parties. But how does the BBC report this: on the front page of its politics page we have: "Labour holds poll in Blears ward" - complete with a smiling photo of the idiot-savant herself, Hazel, declaring that she is "delighted". Dear God...

The Daily Show With Jon Stewart

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Interns and the National Minimum Wage

noreply@blogger.com (Anonymous) — Mon, 18 May 2009 17:10:00 +0000

I've been guest blogging for Enternships.com - a new website which provides a way for students and enterprising young people to get internships with great enterpreneurial companies - on the thorny topic of the National Minimum Wage and its application to unpaid interns.

You can read the whole article here.

The strange case of Hazel Blears and the HMRC

noreply@blogger.com (Anonymous) — Wed, 13 May 2009 08:57:00 +0000

If only we had a word for "Schadenfreude" in the English language - we would be getting such great value out of it at the moment, which is more than you can say about our Members of Parliament and their fondness for claiming the maximum possible allowances for everything from plasma screens to drawbridge wax (OK, that may not be entirely factual).

But more significant than over or "mistakenly" claiming for the odd bit of dog food, is the tax implications of all of this - or more precisely the capital gains tax implications of desingating a house as your primary residence for tax purposes and your second home for expense purposes.

One of the offenders in this respect, Hazel Blears, has said she is paying the tax on the £45,000 profit she made on the sale of her "second home" and has been waving around a cheque made out to HMRC. Aside from the point that she is paying £13,332 on a reported profit of £45,000, which is about 29.6%, which is nice for her given that the higher rate on earned income is 40% - or 50% (or even 60% - see earlier post), I am not aware that HMRC accepts voluntary donations of tax.

Mrs Blears is apparently making the payment on a without prejudice basis. This is just as well, as if she admitted having fiddled her taxes, she would be in line for interest, penalties and possibly prosecution (although, frankly, unlikely where a taxpayer fesses up before the HMRC investigate....).

So what will HMRC do? Will they bank the cheque, say thanks a lot and no further questions? Or will they say if the tax is not due they have no jurisdiction to collect it? And what if they return it, will Mrs Blears donate the money to charity? If so, Shelter might be appropriate.

UPDATE: This post on Ben Brogan's blog appears to confirm my assumption that the HMRC can only take what is in fact due to it and a voluntary overpayment will (if not repaid) be set against future liability.

MPs' expenses - the saga continues

noreply@blogger.com (Anonymous) — Sat, 09 May 2009 17:26:00 +0000

The Daily Telegraph today is continuing its fine job of harassing those MPs who have been a bit liberal in their interpretation of the rules governing the Additional Costs Allowance (or "smearing", homophobically as Ben Bradshaw moaned on Twitter today).

Although sympathetic to the financial realities of life as an MP, I can't say my heart bleeds for those in the spotlight as a result of these revelations. Over the past few years I have had many occassions to claim expenses for work related travel, with the costs being charged back to clients or my employer - and I have lived for six months in a flat owned by my employer. It has always been my basic philosophy that I should be compensated for any costs incurred, but recognising that I have probably saved myself various expenses I would have otherwise incurred (e.g. on food and drink at home), I am always happy if I am working on a tiny bit of a loss.

The trouble is that the guidelines are so broad and various MPs are so lacking in moral scruples, that they are wide open to abuse. It also looks like the House of Commons Fees Office is run by some seriously inept people - or that they are so in awe of, or cowed by our MPs that they have not got the backbone to challenge the most obvious absuses.

The MPs who are going to get away without any scruitiny are the ones who are politically smart enough to claim the whole amount available in relation to mortgage repayments on the correct home and not get into the game of submitting receipts for trivial items.

The more I read the more I am in favour of a system whereby the House of Commons maintains an estate of properties in central London for occupation by MPs who require accomodation in the capital. These could be run very much on the same basis as would be done by a large corporation which has ex pat workers in the City - i.e. Parliament pays for furnishing and cleaning but saves money by buying furniture and cleaning services in bulk. Much like soldiers, larger properties would be allocated according to demonstrable need (I do have sympathy for the "former Labour minister" who wanted to claim for a cot in his second home - in London - so his baby son had somewhere to sleep - there isn't a rule that says the paid-for furnishings have to be exclusively for the use of the MP). If MPs want to live in their own London property, then they should be able to claim a more modest amount towards the upkeep of a constituency home (on a flat rate basis - say £10k per annum tax free), and equally, if they wanted to rent out their own London property and move into Parliamentary accomodation, that too would be OK.

But to get the issue into perspective, we are talking about an allowance of a maximum of £24,000 paid to 659 MPs - less than £16 million of public money, of which, only a tiny proportion has been shown as to be abusive - and there seems to be a huge amount of attention being paid to it. Not that the small amounts are any justification for the cavalier, and in some cases dishonest, approach to spending public money, but given that the country is virtually bankrupt and spending about £1 billion every day of the year, there might be more important things to focus on.